Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate

See Holahan C. , “Crying Foul over Online Junk Food Marketing,” Business Week online, August 12, 2008, available at <http://www.businessweek.com/technology/content/aug2008/tc20080811_394016.htm> (last visited January 8, 2010).

See Federal Trade Commission Improvements Act of 1980, Pub. L. 96–252, 94 Stat. 374 (1980); see also, Westen T. , “Government Regulation of Food Marketing to Children: The Federal Trade Commission and the Kid-Vid Controversy,” Loyola of Los Angeles Law Review 39 (May 2006): 79–92 (discussing history of KidVid).

Federal Trade Commission, Deborah Platt Majoras, “The FTC: Fostering Positive Market Initiatives to Combat Obesity,” Presentation at Obesity Liability Conference, May 11, 2005, Chicago, IL (self-regulation “can address problems more quickly, creatively, and flexibly than government regulation can.”).

Nestle M. , “Food Marketing and Childhood Obesity – A Matter of Policy,” New England Journal of Medicine 3554, no. 24 (2006): 2527–2529.

For example, on September 23, 2008, Labor, Health and Human Services, Education, and Related Agencies Subcommittee (Chairman Harkin D-Iowa ) and Financial Services and General Government Subcommittee (Chairman, Durbin D-Ill .) of Senate Appropriations Committee held a joint hearing called: MARKETING FOOD TO CHILDREN (10:30 a.m. Sept. 23, 192 Dirksen Bldg.).

71 FR 10535 (March 31, 2006).

See Government Appropriations Act 2009, Division D (Financial Services and General) at 39, available at <http://www.rules.house.gov/111/LegText/omni/jes/divdjes_111_hromni2009_jes.pdf> (last visited January 8, 2010).

Federal Trade Commission Act of 1938, 15 U.S.C. 45(a)(1).

Pomeranz J. L. , “Federal Trade Commission's Authority to Regulate Marketing to Children: Deceptive v. Unfair Rulemaking,” Working Paper 2009.

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).

See Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 112 (1990) (Marshall J., Brennan J., concurring).

Institute of Medicine (IOM), Food Marketing to Children and Youth: Threat or Opportunity, (Washington, D.C.: The National Academies Press, 2006): at 227.

Id., at 227 and References at 309–318.

Id., at 8.

Id.

Hastings G. McDermott L. Angus K. Stead M. , and Thomson S. , “The Extent, Nature and Effect of Food Promotion to Children: A Review of the Evidence,” Technical paper prepared for the World Health Organization, 2006.

Harris J. L. Pomeranz J. L. Lobstein T. , and Brownell K. D. , “A Crisis in the Marketplace: How Food Marketing Contributes to Childhood Obesity and What Can Be Done,” Annual Review of Public Health 30 (2009): 211–225.

Story M. French S. , “Food Advertising and Marketing Directed at Children and Adolescents in the US,” International Journal of Behavioral Nutrition and Physical Activity 1, no. 3 (2004): 1–17, at 11.

Id., at 3.

See FTC Report: Marketing Food to Children and Adolescents, July 2008, available at <http://www.ftc.gov/os/2008/07/P064504foodmktingreport.pdf> (last visited January 11, 2010).

See Harris , supra note 17.

See IOM 2006, supra note 12, at 8.

Id., at 309.

Kunkel D. Wilcox B. L. Cantor J. Palmer E. Linn S. , and Dowrick P. , Report of the APA Task Force on Advertising and Children: Psychological Issues in the Increasing Commercialization of Childhood, February 20, 2004, at 16.

John D. R. , “Consumer Socialization of Children: A Retrospective Look at Twenty-Five Years of Research,” Journal of Consumer Research 26, no. 3 (1999): 183–213.

Id., at 188–189.

Id., at 190.

Id., at 190.

Id., at 191.

Eisenberg D. McDowell J. Berestein L. Tsiantar D. , and Finan E. , “It's an Ad, Ad, Ad, Ad world,” Time magazine, August 2002, available at <http://www.time.com/time/magazine/article/0,9171,344045,00.html> (last visited January 12, 2010); see also, Harris , supra note 25.

Industry News, The Grocer, Brandwatch Mintel Category Report: Soft Drinks: Carbonates, June 30, 2001, available at <http://www.thegrocer.co.uk/articles.aspx?page=articles&ID=69075> (last visited January 22, 2010) (discussing how the carbonates market is partially driven by the “under-15s” so companies need to “exploit pester power.”)

EPM Communications, Inc., “Do Smart Marketers to Children Target Kids or Their Parents?” Youth Markets Alert 10, no. 7 (1998): 3 (discussing “targeting kids with the nag factor”), available at <http://www.epmcom.com/article.php?article=a11545&user=39026> (January 25, 2010).

McNeal J. U. , “Tapping the Three Kids' Markets,” American Demographics (1998): 37–41 (discussing the “dollar value of the ‘kidinfluence’ market:” “About 90 percent of product requests made by children to a parent are by brand name.”); see also Sutherland A. Thompson B. , Kidfluence: The Marketer's Guide to Understanding and Researching Generation Y – Kids, Tweens, and Teens (New York: McGraw-Hill, 2003).

See Kunkel , supra note 24, at 20.

Montgomery K. C. Chester J. , “Interactive Food and Beverage Marketing: Targeting Adolescents in the Digital Age,” Journal of Adolescent Health 45, no. 3 Supplement (2009): S18–S29.

Federal Trade Commission Act of 1938, 15 U.S.C. 45(a)(1).

15 U.S.C. 57a.

46 FR 48710, Children's Advertising, codified at 16 CFR 461 (October 2, 1981).

See IOM, supra note 12, at 5.

See IOM, supra note 12.

See 15 U.S.C. 45(n) (1994) (codifying the limited role for actions based on public policy).

See Westen , supra note 2; see also, Calkins S. , “FTC Unfairness: An Essay,” Wayne Law Review 46 (2000): 1935–1991.

See 15 U.S.C. 45(h).

See Harris , supra note 17.

71 FR 10535 (March 1, 2006) Request for Information and Comment: Food Industry Marketing Practices to Children and Adolescents, Background.

71 FR 10535 (March 1, 2006).

Public Law 109–108 (November 22, 2005) (appropriating funds for the Federal Trade Commission for FY 2006).

Senate Report No. 109-88 (2005).

71 FR 10535 (March 31, 2006).

Food Industry Marketing to Children Report, Orders to File Special Report, FTC Matter No.: P064504, available at <http://www.ftc.gov/os/6b_orders/foodmktg6b/index.shtm> (last visited September 11, 2008).

See FTC, supra note 20.

Id.

Schwartz M. Vartanian L. Wharton C. , and Brownell K. D. , “Examining the Nutritional Quality of Breakfast Cereals Marketed to Children,” Journal of the American Dietetic Association 108, no. 4 (2008): 702–705; Stender S. Dyerberg J. , and Astrup A. , “Fast Food: Unfriendly and Unhealthy,” International Journal of Obesity 31, no. 6 (2007): 887–890; Malik M. S. Schulze M. B. , and Hu F. B. , “Intake of Sugar-Sweetened Beverages and Weight Gain: A Systematic Review,” American Journal of Clinical Nutrition 84, no. 2 (2006): 274–288; Spencer E. H. Frank E. , and McIntosh N. F. , “Potential Effects of the Next 100 Billion Hamburgers Sold by McDonald's,” American Journal of Preventive Medicine 28, no. 4 (2005): 379–381; Pereia M. A. Kartashov A. I. Ebbeling C. B. Van Horn L. Slattery M. L. Jacobs D. R. Jr. , and Ludwig D. S. , “Fast-Food Habits, Weight Gain, and Insulin Resistance (the CARDIA study): 15-Year Prospective Analysis,” The Lancet 365, no. 9453 (2005): 36–42; Bowman S. A. Gortmaker S. L. Ebbeling C. B. Pereira M. A. , and Ludwig D. S. , “Effects of Fast-Food Consumption on Energy Intake and Diet Quality among Children in a National Household Survey,” Pediatrics 113, no. 1 (2004): 112–118.

See Government Appropriations Act 2009, Division D (Financial Services and General), at 39, available at <http://www.rules.house.gov/111/LegText/omni/jes/divdjes_111_hromni2009_jes.pdf> (last visited January 11, 2010).

See Government Appropriations Act 2009, supra note 54.

Id.

15 U.S.C §57a.

5 U.S.C. §553.

Magnum-Moss Warranty-Federal Trade Comm. Improvement Act of 1975, Pub. L. 93–637, 88 Stat. 2183.

See Harry and Bryant Co. v. FTC, 726 F.2d 993, 996 (4th Cir. 1983).

Remarks by Rosch J. T. , “Consumer Protection and the Debt Settlement Industry: A View from the Commission” before the 4th Annual Credit and Collection News Conference, Carlsbad, CA, April 2, 2009, at 12–13 and n. 34, available at <http://www.ftc.gov/speeches/09speech.shtm> (last visited January 11, 2010).

Id.

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980).

Board of Trustees v. Fox, 492 U.S. 469, 482 (1989) (Emphasis in original); see also United States fv. United Foods, Inc., 533 U.S. 405, 409 (“[C]ommercial speech, usually defined as speech that does no more than propose a commercial transaction, is protected by the First Amendment.”); see also, Cincinnati, 507 U.S. 410, 423 (1993) (The test “narrowly” looks at “the proposal of a commercial transaction as ‘the test for identifying commercial speech.’”).

See Board of Trustees v. Fox, 492 U.S. 469, 482 (1989) (citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964)) (Speech for profit is “fully protected speech…uttered for a profit,” such as a paid advertisement in a newspaper protesting a major political and public issue of the time, as opposed to a paid advertisement for candy.).

Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978) (internal citations omitted); see also, Schauer F. , “Symposium: Commercial Speech and the First Amendment: Commercial Speech and the Architecture of the First Amendment,” University of Cincinnati Law Review 56 (1988): 1181–1203, at 1183; Post R. , “The Constitutional Status of Commercial Speech,” UCLA Law Review 48 (2000): 1–57, at 20–21.

See also, United States v. Wenger, 427 F.3d 840 (10th Cir. 2005) (finding Section 17(b) of the Securities Act of 1933 regulates commercial speech); Encyclopaedia Britannica, Inc. v. FTC, 605 F.2d 964 (7th Cir. 1979) (finding door-to-door salesmen solicitation to be commercial speech that the FTC has the power to regulate under the FTC Act). Both of these cases addressed commercial disclosure requirements to rectify deceptive speech. But see SEC v. Wall Street Publishing Institute Inc., 271 U.S. App. D.C. 110, 851 F.2d 365, 372 (DC App. Ct. 1988) (finding articles paid for by featured companies publicizing positive aspects of the company not commercial speech under the standard discussed in Bolger v. Youngs Drug Products Corp, 463 U.S. 60 (1983)). The DC Court of Appeals misapplied the law and incorrectly concluded that the speech was not commercial. The speech was clearly commercial speech, see United States v. Wenger, 427 F.3d 840 (10th Cir. 2005), and the commercial disclosure requirement should have been analyzed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).

See Lorillard v. Reilly, 533 U.S. 525, 554 (2001) (“Admittedly, several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases. See, e.g., Greater New Orleans, 119 S.Ct. 1923 [ Thomas J. , concurring in judgment]; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 510–514 [1996] [joint opinion of Stevens Kennedy , and Ginsburg JJ .]; id., at 517 [ Scalia J. , concurring in part and concurring in judgment]; id., at 518, 116 S.Ct. 1495 [ Thomas J. , concurring in part and concurring in judgment]”).

Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 (1976).

Bates v. State Bar of AZ, 433 U.S. 350, 383 (1997).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563 (1980).

See Rubin v. Coors Brewing, 514 U.S. 476, 496 (1995) (Stevens J. concurring); Association of National Advertisers v. Lungren, 44 F.3d 726, 732 (9th Cir. 1994) (Focusing on commercial speech's “potential for deception in light of the lessons of experience and the nature of the target audience.”).

See Post , supra note 66.

Cincinnati v. Discovery Network, 507 U.S. 410, 432 (1993) (Blackmun J. concurring) (government regulation of misleading and deceptive speech “is consistent with this Court's emphasis on the First Amendment interests of the listener in the commercial speech context.”).

Virginia Bd. of Pharmacy, 425 U.S. at 777–778 (1976) (Stewart J. concurring) (“the commercial advertiser generally knows the product or service he seeks to sell and is in a position to verify the accuracy of his factual representations before he disseminates them. The advertiser's access to the truth about his product and its price substantially eliminates any danger that government regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression. There is, therefore, little need to sanction ‘some falsehood in order to protect speech that matters.’”).

Sullivan K. M. , “Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart,” Supreme Court Review 123 (1996): 156–161 (“[T]he consumer is not expected to have the competence or access to information needed to question the advertiser's claim, and the correction is not to be left to competitors and mere government counterspeech.”).

The Federal Trade Commission is responsible for regulating the truth or falsity of food advertising. See FTC Act of 1938, 15 U.S.C. §§5, 12, 13; Memorandum of understanding between the Federal Trade Commission and the Food and Drug Administration, 1971, available at <http://www.fda.gov/oc/mous/domestic/225-71-8003.html> (last visited January 2, 2009). The FTC monitors food marketing practices, responds to outside complaints and brings administrative lawsuits. See FTC Division of Advertising Practices, available at <http://www.ftc.gov/bcp/bcpap.shtm> (last visited January 2, 2009). These are time consuming processes and procedures.

See Rubin v. Coors Brewing, 514 U.S. 476, 496 (1995) (Stevens J. concurring) (“[T]he consequences of false commercial speech can be particularly severe: Investors may lose their savings, and consumers may purchase products that are more dangerous than they believe or that do not work as advertised. Finally, because commercial speech often occurs in the place of sale, consumers may respond to the falsehood before there is time for more speech and considered reflection to minimize the risks of being misled. The evils of false commercial speech, which may have an immediate harmful impact on commercial transactions, together with the ability of purveyors of commercial speech to control falsehoods, explain why we tolerate more governmental regulation of this speech than of most other speech.”) (internal citation omitted).

In re R.M.J., 455 U.S. 191, 203 (1982).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563, citing Friedman v. Rogers, 440 U.S. 1, 13, 15–16.

In Re R.M.J., 455 U.S. 191, 206 (1982).

The evidence presented much actually support the government's position. See e.g., Snell v. Engineered Systems & Designs, 669 A.2d 13, 21 (Supreme Court Delaware 1995) (rejecting a three-year-old poll taken in Missouri but acknowledging that “it is well accepted that current surveys are persuasive when they canvas the geographic area in which the challenged use occurs, or a geographic area reasonably close to that site”).

Joe Conte Toyota v. Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 756 (5th 1994) (quoting Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 106, 112 (1990); See also Piazza's Seafood World, LLC v. Odom, 2004 U.S. Dist. LEXIS 25991 at *13, (E.D. La. December 22, 2004) (Commercial speech is “‘actually misleading’ only where the record contains actual evidence of deception.”) (quoting Joe Conte Toyota, 24 F.3d at 756).

In Re R.M.J., 455 U.S. 191, 203 (1982).

Peel v. Atty. Registration & Disciplinary Comm'n, 496 U.S. 91, 101 (1990).

See Peel v. Atty. Registration & Disciplinary Comm'n, 496 U.S. 91, 108 (1990) (whether speech is inherently misleading is a question of law).

In Re R.M.J., 455 U.S. 191, 203 (1982).

Joe Conte Toyota v. Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 756 (5th Cir. 1994) (citing Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990) (internal citations omitted)).

See e.g., Bioganic Safety Brands v. Ament, 174 F. Supp. 2d 1168, 1182 (D.Co. 2001).

In re R.M.J., 455 U.S. 191, 203 (1982).

See Bioganic Safety Brands v. Ament, 174 F.Supp.2d 1168, 1180 (D.Co. 2001) (quoting Revo v. Disciplinary Bd of the Supreme Ct, 106 F.3d 929, 933 (10th Cir. 1997).

Even the Justices explanations can be confusing. In his concurrence in Peel v. Attorney Disciplinary Commission, Justice Marshall attempted to clarify inherently misleading speech doctrine: “The Court has also suggested that commercial speech that is devoid of intrinsic meaning may be inherently misleading, especially if such speech historically has been used to deceive the public.” 496 U.S. 91, 112 (1990) Justice Marshall concurring (citing Friedman v. Rogers, 440 U.S. 1 (1979) and In re R.M.J., at 202)). This reference to the “historically” deceptive nature leaves the inherently misleading doctrine and veers into actually misleading speech. If speech was historically likely to deceive, it could be considered misleading in practice, or actually misleading.

Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1108 (9th Cir. 2004) (“board certified”); Joe Conte Toyota v. Louisiana Motor Vehicle Commission, 24 F.3d 754, 758 (5th Cir. 1994) (“invoice”); NC State Bar v. Culbertson, 177 N.C.App. 89, 96 (Court Appeals NC 2006) (“published”).

Friedman v. Rogers was decided prior to Central Hudson but the Court has used it as a basis for its prong one analysis and it has applied its import in the context of the test. This may cause or at least add to some of the confusion in the inherently misleading doctrine.

Friedman v. Rogers, 440 U.S. 1, 4 (1979).

Friedman v. Rogers, 440 U.S. 1, 12 (1979).

In Re R.M.J., 455 U.S. 191, 203 (1982).

Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1107 (9th Cir. 2004); see also, Mason v. Florida Bar, 208 F.3d 952, 955 (11th Cir. 2000).

In re R.M.J., 455 U.S. 191, 203 (1982).

C.f. Borgner v Brooks, 284 F. 3d 1204, 1214 (11th Cir. 2002) (finding disclosure requirement for “potentially misleading” dentist's advertisement constitutional); Simm v. Louisiana State Board of Dentistry, 2002 U.S. Dist. LEXIS 3195, *14 (E.D. La Feb. 22, 2002).

In re R.M.J., 455 U.S. 191, 203 (1982).

Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 111 (1990).

Mason v. Florida Bar, 208 F.3d 952, 956 (2002) (“A state cannot satisfy its burden to demonstrate that the harms it recites are real and that its restrictions will alleviate the identified harm by rote invocation of the words ‘potentially misleading.’”).

Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1107 (9th Cir. 2004).

See Post , supra note 66 (“Such an approach would shift judicial attention away from the content of particular communications and instead direct judicial scrutiny to the structural preconditions of consumer rationality and independence.”). C. f. Cincinnati v. Discovery Network, 507 U.S. 410, 433 (1993) (Blackmun J. concurring) (the “listener.has little interest in being coerced into a purchasing decision.”) (citing Ohralik v. Ohio State Bar Assn., 436 U.S. at 457.).

See IOM, supra note 12, at 309.

See Kunkel , supra note 24, at 16.

See Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980).

See Kunkel , supra note 24, at 16.

Id.

See Kunkel , supra note 24 (“studies make clear that young children do not comprehend the intended meaning of the most widely used disclaimers.”); c.f., Zauderer v. Office of the Disciplinary Counsel, 471 U.S. 626, 653 n.15 (1985) (upholding a disclosure requirement to explain the meaning of technical terms; finding it was reasonable to conclude that the omission created the potential for deception).

See Campbell A. , “Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling,” Loyola of Los Angeles Law Review 39 (2006): 447–506, 487.

See Kunkel , supra note 24, at 6.

See Harris , supra note 17.

Schor J. B. Ford M. , “From Tastes Great to Cool: Children's Food Marketing and the Rise of the Symbolic,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 10–21, at 16.

See Batada A. Seitz M. D. Wootan M. G. , and Story M. , “Nine Out of 10 Food Advertisements Shown During Saturday Morning Children's Television Programming Are for Foods High in Fat, Sodium, or Added Sugars, or Low in Nutrients,”” Journal of the American Dietetic Association 108, no. 4 (2008): 673–678. (“Emotional appeals, such as fun or being hip or cool were [found in 86% of] the Saturday morning food advertisements.”)

Connor S. M. , “Food-Related Advertising on Preschool Television: Building Brand Recognition in Young Viewers,” Pediatrics 118, no. 4 (2006): 1478–1485.

See Schor Ford , supra note 116, at 15.

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563 (1980) (“the First Amendment's concern for commercial speech is based on the information function of advertising”).

Friedman v. Rogers, 440 U.S. 1, 12 (1979).

Peel v. Attorney Disciplinary Commission, 496 U.S. 91, (1990) ( Marshall J. Brennan J. , concurring) (A statement is inherently misleading when “the particular method by which the information is imparted to consumers is inherently conducive to deception and coercion.”).

See e.g., Brownell K. D. , Food Fight (New York: McGraw-Hill, 2004): at 106–107 (tells the anecdotal story of a four-year-old seeing Betty Crocker's Disney Princess Fruit Snacks with Cinderella, Snow White, and the Little Mermaid on the box, saying, “I want that.” The mother asks “What is it?” and the child responds, “I don't know.”).

See IOM, supra note 12, at 9. (“Statistically, there is strong evidence that exposure to television advertising is associated with adiposity in children ages 2–11 years and teens ages 12–18 years.”).

Cf. Law S. A. , “Addiction, Autonomy, and Advertising,” Iowa Law Review 77 (1992): 909–955, 931–932 (rejecting regulation in the context of marketing addictive products to adults, reasoning that the “vast majority of advertising is not informational,” but rather “beautiful, fast paced, funny, sensuous, provocative, or entertaining”); but see, United States v. Wenger, 427 F.3d 840, 847 (10th Cir. 2005) (The Securities Act of 1933 regulates communication about stock for consideration, and although that communication may have “elements of entertainment,” it is considered commercial speech and may be regulated.); see also, Paris Adult Theatre v. Slaton, 413 U.S. 49, 70 (1973) (Douglas J. dissenting) (comparing obscenity to “[a]rt and literature,”); Paris Adult Theatre v. Slaton, 413 U.S. 49, 57 (1973) (citing Miller v. California, 413 U.S. 15 (1973)) (holding that obscenity is subject to regulation by the states).

See also Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th 1983) (The state argued that liquor advertising “falsely identifying alcohol with ‘the good life’ instead of disclosing the personal and social disasters it threatens” was not protected speech.); see also, Blasi V. Monaghan H. P. , “The First Amendment and Cigarette Advertising,” JAMA 256, no. 4 (1986): 502–509 (proposing a ban on all tobacco advertising, arguing that the ads were misleading and deceptive because they exploited the psychological vulnerabilities of their audience, were image-oriented, and failed to disclose the lethal and addictive qualities, while providing little to no factual information about the product).

Bellotti v. Baird, 443 U.S. 622, 634–635 (1979); Ginsberg v. New York, 390 U.S. 629, 640–641 (1968).

Ginsberg v. New York, 390 U.S. 629, 639 (1968).

FTC Policy Statement on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 181 (1984) (quoting Ideal Toy, 64 F.T.C. 297, 310 (1964)).

44 Liquormart v. Rhode Island, 517 U.S. 484, 503 (1996); see also Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 105 (1990) (“We reject the paternalistic assumption that the recipients of petitioner's letterhead are no more discriminating than the audience for children's television.”); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562 (1980) (“[W]e have rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech.”).

Ginsberg v. New York, 390 U.S. 629, 640–641 (1968).

Ginsberg v. New York, 390 U.S. 629, 639 (1968).

Ginsberg v. New York, 390 U.S. 629 (1968).

Ginsberg v. New York, 390 U.S. 629, 638 (1968).

Ginsberg v. New York, 390 U.S. 629, 639 n.6 (1968) (quoting Emerson T. I. , “Toward a General Theory of the First Amendment,” Yale Law Journal 72, no. 5 (1963): 877–956, at 938, 939).

Ginsberg v. New York, 390 U.S. 629, 649–50 (1968) ( Stewart J. , concurring). See Video Software Dealers Association v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) (In addressing government regulation of violent video games to minors, the 9th Circuit limited the holding of Ginsberg to the obscenity context of sexually-explicit material. Even under this interpretation, the underlying premise that children warrant protection by the state remains intact, along with the understanding that children's First Amendment rights are not identical to that of adults.).

Bellotti v. Baird, 443 U.S. 622, 634 (1979).

See Ginsberg v. New York, 390 U.S. 629, 640–641; c.f Association of National Advertisers v. Lungren, 44 F.3d 726, 732 (9th Cir. 1994) (Focusing on commercial speech's “potential for deception in light of the lessons of experience and the nature of the target audience.”).

See Kunke supra note 24, at 16.

See Harris , supra note 17; see also, Eisenberg , supra note 30.

Bellotti v. Baird, 443 U.S. 622, 634 (1979).

Ginsberg v. New York, 390 U.S. 629, 649–50 (1968) ( Stewart J. , concurring).

See Westen , supra note 2.

See Post , supra note 66.

Ginsberg v. New York, 390 U.S. 629, 636–637 (1968) (“[W] e inquire whether it was constitutionally impermissible for New York,…to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see. We conclude that we cannot say that the statute invades the area of freedom of expression constitutionally secured to minors.”).

See Tennessee Secondary School Athletic Association v. Brentwood Academy, 127 S.Ct. 2489, 2495 (2007) (quoting Ohralik, 436 U.S., at 458, 98 S. Ct. 1912, 56 L. Ed. 2d 444.).

FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978).

If we were to take the Supreme Court at its word and consider only speech proposing a commercial transaction to be commercial speech, see Cincinnati, 507 U.S. 410, 423 (1993), then I question whether such speech can meets the definition of commercial speech because there can be no expectation of a commercial transaction. Young children lack the financial and legal means to contract for most products. See Restatement of the Law, Second, Contracts, § 12 Capacity to Contract (1981) (An infant lacks the “legal capacity to incur contractual duties.”); Restatement of the Law, Second, Contracts, § 14 Infants (1981) (“Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.”). Speech seeking to make profit and directed at children is often relating to the economic interest of the commercial actor and the child's guardian, who has the capacity to purchase the product. The child — the recipient and intended audience of the speech — is not on the purchasing side of the transaction. A child must rely on the parent to contractually purchase the product and therefore the recipient of the speech lacks an economic interest in the communication. See Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). A commercial actor cannot have a reasonable expectation of a completed commercial transaction with the intended receiver of its speech about its products. However, the Court has increasingly accepted a variety of communication as commercial speech rather than strictly relying on its definition.

See Kunkel , supra note 24, at 11.

Id.

Id., at 20.

Id., at 11.

Linn S. Novosat C. L. , “Calories for Sale: Food Marketing to Children in the Twenty-First Century,” Annals of the American Academy of Political and Social Science 615, no. 1 (2008): 133–155, at 136–137 (“child-targeted marketing has become so ubiquitous and sophisticated that it presents a challenge to parental influence over children's food choices.”).

Ginsberg v. New York, 390 U.S. 629, 639 (1968).

Morse v. Frederick, 127 S.Ct. 2618 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266–267 (1988).

See Bellotti v. Baird, 443 U.S. 622, 633–639 (1979) (discussing varying contexts where constitutionally children are treated differently under the law); see also Cunningham L. , “A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status under Law,” U.C. Davis Journal of Juvenile Law & Policy 10 (2006): 275–377.

44 Liquormart v. Rhode Island, 517 U.S. 484, 498, 501 (1996) (“When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech.”).

Paris Adult Theater v. Slaton, 413 U.S. 49, 64 (1973).

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 465 (1978); see also Florida Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995) (upholding a 30-day restriction on targeted direct-mail solicitations of accident victims and their relatives); but see Tennessee Secondary School Athletic Association v. Brentwood Academy, 127 S.Ct. 2489, 2492 (2007) (declining to extend the holding of Ohralik beyond the attorney-client context).

Cincinnati v. Discovery Network, 507 U.S. 410, 433 (1993) (Blackmun J. concurring) (citing Ohralik v. Ohio State Bar Assn., 436 U.S. at 457.).

Paris Adult Theater v. Slaton, 413 U.S. 49, 67 (1973).

See FTC Act of 1938, 15 U.S.C. §§5, 12, 13; Memorandum of Understanding between the Federal Trade Commission and the Food and Drug Administration, 1971, available at <http://www.fda.gov/oc/mous/domestic/225-71-8003.html> (last visited January 2, 2009).

15 U.S.C. 57a(a)(1)(A).

15 U.S.C. 57a(a)(1)(B).

See Pomeranz , supra note 9.

See Novartis Corp. v. FTC, 223 F.3d 783, 787 n. 4 (DC App. 2000); Kraft v. FTC, 970 F.2d 311, 317–318 (7th Cir. 1992).

Kraft v. FTC, 970 F.2d 311 (7th Cir. 1992) (quoting Zauderer v. Office of the Disciplinary Counsel, 471 U.S. 626, 645 (1985).

See Pomeranz , supra note 9.

Id.

See FTC 1984, supra note 129, at 170–171.

Id., at 170.

Id., at 172.

Id., at 175–176, fn15 (citing Encyclopedia Britannica, 87 F.T.C. 421, 497 (1976), aff'd, 605 F.2d 964 (7th Cir. 1979), cert. denied, 445 U.S. 934 (1980), modified, 100 F.T.C. 500 (1982).).

Encyclopaedia Britannica, Inc. v. FTC, 605 F.2d 964, 967–968 (1979).

Encyclopedia Britannica, 87 F.T.C. 421, 497 (1976), aff'd, 605 F.2d 964 (7th Cir. 1979), cert. denied, 445 U.S. 934 (1980), modified, 100 F.T.C. 500 (1982).).

Mello M. M. , “Federal Trade Commission Regulation of Food Advertising to Children: Possibilities for a Reinvigorated Role,” Journal of Health, Politics, Policy and Law (2010) (in press). (quoting Federal Trade Commission. 1978. FTC staff report on television advertising to children. Washington: Federal Trade Commission.) (“The conclusion that only restrictions or bans on advertising to young children would constitute a sufficient remedy is supported by the American Psychological Association, which has reported that ‘studies make clear that young children do not comprehend the intended meaning of the most widely used disclaimers.’”) (quoting Kunkel , supra note 24).

See FTC 1984, supra note 129, at 171.

See Bates v. Arizona, 433 U.S. 350, 383 n.37 (1977)).

See FTC 1984, supra note 129, at 181 (quoting Bates v. Arizona, 433 U.S. 350, 383 n.37 (1977)).

Id., at 181 (quoting Ideal Toy, 64 F.T.C. 297, 310 (1964)).

Id., at 171.

Id., at 188.

Id., at 191–192 (“A finding of materiality is also a finding that injury is likely to exist because of the representation, omission, sales practice, or marketing technique. Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept.”).

Id., at 171.

Id., at 190.

See Kraft, Inc. v. FTC, 970 F.2d 311, 322 (1992); see also, National Commission on Egg Nutrition v. FTC, 570 F.2d 157, 162 (7th Cir. 1977) (“The fact that health is involved enhances the interests of both consumers and the public in being assured “that the stream of commercial information flow cleanly as well as freely.”).

Pennsylvania Funeral Directors Assn, Inc. v. FTC, 41 F.3d 81, 85–86 (3rd Cir. 1994).

FTC v. Indiana Federation of Dentists, 476 U.S. 447, 454 (1986); see also 15 U.S.C. 45(c).

See e.g., Pennsylvania Funeral Directors Assn, Inc. v. FTC, 41 F.3d 81 (3rd Cir. 1994);. American Financial Services Assn v. FTC, 767 F.2d 957 (Ct. App. DC 1985).

FTC v. Indiana Federation of Dentists, 476 U.S. 447, 454 (1986) (Any “legal issues presented – that is, the identification of governing legal standards and their application to the facts found,” are for the courts to resolve.); see also Chicago Bridge & Iron Co. v. FTC, 534 F.3d 410, 422 (5th Cir. 2008) (“We review de novo all legal questions pertaining to Commission orders.”); Schering-Plough Corp. v. FTC, 402 F.3d 1056, 1063 (11th Cir. 2005) (same); Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 934 (7th Cir. 2000) (same).

But see, Florida Bar v. Went For It, 515 U.S. 618 (1995) (Upholding a 30 day commercial speech restriction to protect the personal privacy of accident victims and their families from intrusive letters by attorneys).

Lorillard Tobacco Co., v. Reilly, 533 U.S. 525 (2001).

Id.

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).

See Pomeranz , supra note 9 (If Congress reinstated the FTC's authority to pursue rulemaking as unfair in this area, any FTC action would likely be subject to the full Central Hudson test because “unfair” commercial speech is not traditionally in the category of speech that the Supreme Court has removed from First Amendment protection.)

Florida Bar v. Went For It, 515 U.S. 618, 625 n.1 (1995) (“[A] single substantial interest is sufficient to satisfy Central Hudson's [second] prong.”) (citing Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995) (deeming only one of the government's proffered interests “substantial”)).

The government's interest cannot be framed as advancing speech restrictions for a product it considers problematic because there is no vice exception to the First Amendment. See 44 Liquormart v. R.I., 517 U.S. 484, 513–514 (1996) (“Almost any product that poses some threat to public health or public morals might reasonably be characterized by a state legislature as relating to ‘vice activity.’ Such characterization, however, is anomalous when applied to products such as alcoholic beverages, lottery tickets, or playing cards, that may be lawfully purchased on the open market. For these reasons, a ‘vice’ label that is unaccompanied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity.”); see also, Lorillard v. Reilly, 533 U.S. 525, 589 (2001) (Thomas J. concurring).

Rubin v. Coors Brewing, 514 U.S. 476, 485 (1995) (“Government here has a significant interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis of alcohol strength, which could lead to greater alcoholism and its attendant social costs.”); see also Florida Bar v. Went for it, 515 U.S. 618, 625 (1995) (As part of states' “‘power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.’”) (quoting Goldfarb v. VA State Bar, 421 U.S. 773, 792 (1975)); see also Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd ed. (Berkeley: University of California Press, 2008): at 79–80 (The police power of states and their political subdivisions includes the power to enact laws, promulgate regulations, and take action to protect, preserve, and promote public health, safety, and welfare.).

Board of Trustees v. Fox, 492 U.S. 469, 475 (1989) (Finding the asserted government interests to be “substantial: promoting an educational rather than commercial atmosphere on SUNY's campuses, promoting safety and security, preventing commercial exploitation of students, and preserving residential tranquility.”).

See also, The World Health Organization's Global Strategy on Diet, Physical Activity and Health was endorsed by the 57th World Health Assembly in 2004 (recommending that “food and beverage advertisements should not exploit children's inexperience or credulity,” should discourage messages that promote less healthful dietary practices, and should encourage positive healthful messages).

Cf. FTC v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 313 (1934) (upholding the FTC's determination that the sale of candy involving “chance” was “shown to exploit consumers, children, who are unable to protect themselves”).

Lorillard v. Reilly, 530 U.S. 525, 555 (2001).

Lorillard v. Reilly, 530 U.S. 525, 557 (2001).

Cf. Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995) (stating the Court does not require “empirical data” under prong three); but see Edenfield v. Fane, 507 US 761 (1992) (striking ban on in-person solicitation by CPAs because the board presented not evidence); see also, 44 Liquormart v. R.I., 517 U.S. 484, 505 (1996) (ban on advertising alcohol prices struck down because the state did not present evidence of its potential efficacy).

Lorillard v. Reilly, 530 U.S. 525, 561 (2001).

See IOM 2006, supra note 10, at 8, 227 and References at 309–318.

See Story French , supra note 18, at 3, 11.

See Hastings , supra note 16; see Harris , supra note 12; see also, Westen , supra note 2, at 84 (“60,000 pages of expert testimony” were archived).

See Story French , supra note 18, at 3.

See Linn Novosat , supra note 153, at 150.

Id., at 137.

See Kunkel , supra note 24, at 20.

See Campbell , supra note 113 (arguing that product placement and character selling are deceptive techniques when used to market to children).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).

Reno v. ACLU, 521 U.S. 844, 874 (1997).

Lorillard v. Reilly, 533 U.S. 525, 565 (2001) (invalidating the speech restrictions because “governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults”) (citing Reno v. ACLU, 521 U.S. 844, 875 (1997)).

See Cunningham , supra note 156, at 286 (Noting that Under United States law, the age of majority is 18 years old; however, in many states, a child can drive at 16, be sentenced to adult prison for certain offenses at 14, but cannot purchase alcohol until age 21.).

Papandrea M.-R. , “Dunwody Distinguished Lecture in Law: Article: Student Speech Rights in the Digital Age,” Florida Law Review 60 (2008): 1027–1102, 1082 (“Certainly if by ‘children’ we mean persons from birth to age eighteen, claims that children are emotionally and mentally less mature and more vulnerable than adults are obvious. Most of the students asserting their free speech rights, however,…are at least twelve years old, and the vast majority are in high school. Thus, when considering the free speech rights of students,…the discussion is about the free speech rights of adolescent students.”); c.f. Cunningham , supra note 156, at 360–363 (The Court applied different First Amendment standards to children between 8 and 14 years of age in the public school context).

Jeffery B. , “The Supreme Court of Canada's Appraisal of the 1980 Ban on Advertising to Children in Quebec: Implications for ‘Misleading’ Advertising Elsewhere,” Loyola of Los Angeles Law Review 39 (2006): 237–276, at 239–240, n. 13.

Id. ( Jeffery ), at 239–240, n. 13 (translating the words of the Attorney General).

See FTC, supra note 20.

See IOM, supra note 12, at 25.

Schor J. B. , Born to Buy: The Commercialized Child and the New Consumer Culture (New York: Simon & Schuster Scribner, 2004): at 108.

Id., at 106.

Pechmann C. Levine L. Loughlin S. , and Leslie F. , “Impulsive and Self Conscious: Adolescents' Vulnerability to Advertising and Promotion,” American Marketing Association 24, no. 2 (2005): 202–221.

See Government Appropriations Act 2009, Division D (Financial Services and General), at 39, available at <http://www.rules.house.gov/111/LegText/omni/jes/divdjes_111_hromni2009_jes.pdf> (last visited January 12, 2010).

Teinowitz I. , “FTC Could Set Standards for Food Marketing Aimed at Teens: Omnibus Appropriations Bill Calls for Study, Broadens Scope,” Advertising Age, March 11, 2009.

See FTC, supra note 20, at Executive Summary at 10.

Fabrikant G. , “Nickelodeon Sees Mouse Ears Over Its Shoulder,” New York Times, October 14, 2006 (in 2006, on average, children watching Nickelodeon: 1.2 million; and Disney Channel: 863,000).

See Hundt R. E. Chairman, “Speech to the Center For Media Education's Press Conference on the New Children's Television Act Rules, Federal Communications Commission,” Washington, D.C., September 18, 1997 (For the 1997/1998 Season: “On any given Saturday morning at 10 am, there are 11 million kids age 2–11 watching TV.”), available at <http://www.fcc.gov/Speeches/Hundt/spreh751.txt> (last visited January 12, 2010).

See Batada , supra note 117.

See 44 Liquormart v. Rhode Island, 517 U.S. 484, 499 (1996) (quoting Linmark Associates v. Township of Willingboro, 431 U.S. 85, 96 (1977) (Stating that the government retains more regulatory authority when commercial speech restrictions strike at the “commercial aspect” of the speech, i.e., “with off erors communicating offers to offerees,” rather than at the substance of the communication.).

See Kellogg's Honey Smacks nutrition facts panel, available at <http://www2.kelloggs.com/ServeImage.aspx?BID=38303&MD5=f484914d935a3d67b411830064555980> (last visited January 12, 2010); Honey Smacks contains 15 grams of sugar per serving which is one of the highest of any cereal. See Boyles S. , reviewed by Klodas E. , “Kids' Cereals: Some Are 50% Sugar: Consumer Reports Rates Nutritional Winners and Losers,” WebMD Health News, October 1, 2008, available at <http://www.webmd.com/food-recipes/news/20081001/kids-cereals-some-are-50-percent-sugar (last visited January 12, 2010).

See Reno v. ACLU, 521 U.S. 844, 865 (1997) (citing Ginsberg v. New York, 390 U.S. 629 (1968)).

See Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93 (1977) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976).

C.f. Lorillard v. Reilly, 533 U.S. 525, 565 (2001) (invalidating speech restrictions because “governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults”); Reno v. ACLU, 521 U.S. 844, 874 (1997) (striking down Communications Decency Act, which sought to deny minors access to potentially harmful speech on the internet, but “effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another.”); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73, 75 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”); Butler v. Michigan, 352 U.S. 380 (1957) (invalidating a Michigan statute that made it a crime to sell literature that was inappropriate for minors to the general public because such a statute would “reduce the adult population of Michigan to reading only what is fit for children”).

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).